Is there a collision between the EU Charter and the obligation to notify that intermediaries with legal professional privilege have under DAC 6?

University essay from Lunds universitet/Institutionen för handelsrätt

Abstract: The thesis explores the Directive 2018/822 of May 2018, also known as DAC 6, and the obligation to notify that it placed on intermediaries with legal professional privilege. The research conducted aims at answering the question if the notification obligation brought by DAC 6 is in conflict with EU primary law, namely, the Charter of Fundamental Rights of the European Union. The DAC 6 was the fifth amendment to the Directive 2011/16/EU, also known as the DAC, and it is associated with the theme of mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements. The DAC 6 introduced modifications to the DAC and doubts in terms of a possible collision between the DAC 6 and the Charter of Fundamental Rights of the European Union surfaced. These doubts are based on the fact that the DAC 6 requires that intermediaries, who wish to use their right to a waiver from filing information on a reportable cross-border arrangement by invoking the legal professional privilege, notify another intermediary of the reporting obligations, so the other intermediary files the necessary information and complies with the reporting obligations. Some scholars argue that the obligation placed by the DAC 6 on intermediaries to notify other intermediaries breaches the legal professional privilege and, consequently, it breaches the Charter of Fundamental Rights of the European Union. Recently, in December 2020, questions were referred by the Belgium Constitutional Court to the Court of Justice of the European Union in relation to a possible collision between these two legislations. At the present moment, the case, known as the case Orde van Vlaamse Balies and Others, is still pending a decision and the thesis focuses its investigation on this discussion. The structure of the thesis aims at guiding the reader through different subjects, such as the legal professional privilege, the Charter of Fundamental Rights of the European Union, the Convention for the Protection of Human Rights and Fundamental Freedoms, the DAC, the DAC 6, and the notification obligation.

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